What does "As of Right" Mean?

Christopher John

"As of right" is a phrase which means that a person may take a certain type of legal action without obtaining permission. Some jurisdictions use the phrase in their statutes or rules concerning the right to appeal a judicial or administrative decision. In other words, the phrase establishes a citizen’s right to contest an adverse decision. Zoning regulations may also use the phrase with regard to the use or development of property. Essentially, the phrase establishes a legal entitlement that arises when certain conditions trigger it.

A property owner wishing to develop apartments does not need to obtain permission in the form of a variance if the land is already zoned for apartments.
A property owner wishing to develop apartments does not need to obtain permission in the form of a variance if the land is already zoned for apartments.

In legal actions, the right to appeal an adverse decision is not necessarily automatic. Appeals may be discretionary or as of right. Discretionary means that a court or some other appellate body may choose not to allow an appeal. If the appeal is mandatory, the appellate body is obligated to hear an appeal as long as the requirements of the rule or law establishing the right are satisfied.

Typical requirements for this type of appeal are a final judgment from a lower court and that the person appealing files a notice of appeal within a specified time. If the conditions are not satisfied, an appellate body may not hear an appeal. Some jurisdictions may allow an immediate appeal as of right even when there is no final judgment. For example, when a lower court holds a party in criminal contempt, the party may file an immediate appeal as of right. Generally, criminal contempt occurs when someone allegedly obstructs the court in some manner while in the presence of the judge.

In zoning, ordinances or regulations control how a person may use real property. An owner of land may wish to develop or use his property in a manner that seems inconsistent with zoning laws. If so, the owner must obtain permission from authorities through a variance or special permit that allows the special development or use. For example, a homeowner may wish to operate a business from his home which zoning laws may prohibit. The homeowner must then seek a variance from a governmental body that has authority to grant it.

In zoning regulations, the term typically means that development or use of property may occur without obtaining approval through a variance or a special permit. This occurs because an owner intends on using his property in a manner consistent with zoning laws. For instance, an owner may want to develop his property by constructing an apartment building. If the area is zoned for such development, the owner is not required to obtain a variance because the development does not conflict with zoning laws.

Although a variance or special permit is not required for as of right development, zoning regulations may still require an owner to obtain other types of permits to assure compliance with the law. For instance, an owner would need to comply with laws requiring inspections for building code compliance. Zoning authorities, however, generally cannot prohibit as of right development.

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